Bhurua Satnami (Dead) Through Lrs vs Smt. Surobala Barman (Died) ...
2021 Latest Caselaw 794 Chatt

                       1

                                                       NAFR

   HIGH COURT OF CHHATTISGARH, BILASPUR

            SA No.537 of 2004

Bhurua Satnami (Dead) Through Lrs.,               As   Per
Honble Court Order Dt. 08­06­2021

1.1 ­ Ramlal Satnami, S/o Bhurwa Satnami, Aged
About 45 Years (S/o Deceased Appellant Bhurwa)

1.2 ­ Samaru Satnami, S/o Bhurwa Satnami, Aged
About 50 Years (S/o Deceased Appellant Bhurwa)

1.3 ­ Surendra Satnami, S/o Bhurwa Satnami
Aged About 26 Years (Grand son of Deceased
Appellant Bhurwa)

All R/o Pandri (Satnamipara), Raipur, Tahsil
and District Raipur, Chhattisgarh

                                      ­­­­ Appellants

                  Versus

1. Smt. Surobala Barman (Died) Through her
Legal Heirs As Per the Hon'ble Court Order
Dated 24­06­2021.

1 (i)    Mangal      Chand     Barman,      S/o        Late
Shrikant Barman

1 (ii)   Amarchand    Barman    S/o    Late   Shrikant
Barman

Both R/o Taz Nagar, Near Mayur Club, Pandri
Tarai, Raipur, District Raipur (C.G.)

2. Vimal Kumar Barman (Died) Through His
Legal Heirs As Per The Hon'ble Court Order
Dated 24­06­2021

2 (i) Smt. Parvati         Barman,    W/o   Late   Vimal
Kumar Barman

2 (ii) Shridhar Barman, S/o Late Vimal Kumar
Barman

2 (iii) Girdhar Barman, S/o Late Vimal Kumar
                                   2

     Barman

     2 (iv) Parul Das, S/o Late Vimal Kumar Barman

     All are resident of Taz Nagar Near Mayur
     Club, Pandri Tarai, Raipur, District Raipur
     Chhattisgarh

                                                ­­­­ Respondents

For Appellants Mr. S. K. Sahu, Advocate

Hon'ble Justice Shri Sanjay K. Agrawal

Order On Board

02/07/2021

1. Heard on admission and formulation of

substantial question of law in this second

appeal preferred by the appellant/plaintiff.

2. By the impugned judgment and decree, the

First Appellate Court has dismissed the

appeal preferred by the appellant/plaintiff

vide judgment and decree dated 28.08.2004

passed by the learned First Additional

Session Judge, Raipur (C.G.) in Civil Appeal

No.17A/2002 affirming the judgment and decree

of the Trial Court dated 30.01.2001 passed by

the learned First Civil Judge Class­II,

Raipur (C.G.) in Civil Suit No.84­A/1999,

whereby the learned Trial Court dismissed the

suit of the appellant/plaintiff.

3. Mr. Sahu, learned counsel for the

appellant/plaintiff, would submit that both

the Courts below have concurrently erred in

dismissing the suit and appeal filed by the

appellant/plaintiff by recording a finding

perverse and contrary to the record. As such,

the appeal involves substantial question of

law for determination and deserves to be

admitted for hearing.

4. I have heard learned counsel for the

appellant/plaintiff, considered his

submissions made herein­above and also went

through the records with utmost

circumspection.

5. The suit land bearing Khasra No.485/1, area

600 sq. ft. was earlier held by the plaintiff

Bhurua Satnami. The case of the plaintiff is

that he is the title holder of the land

bearing Khasra No.485/1, area 0.122 hectare,

Patwari Halka No.109, situated at Pandri

Tarai, Raipur. In some part of the land, mud

built houses (Kachhe Makan) have been

constructed and in other parts, brick built

houses (pakke makan) and some part of the

land is vacant and this vacant land is the

suit land. In December, 1990, the defendants

started foundation for construction of their

house in the vacant land, which led to the

Police report by the plaintiff against the

defendants at Police Station Pandri,

thereafter the construction was stopped by

the Police. In the mean time, when the

plaintiff enquired about the suit land in the

Sub Registrar Office, Raipur, then he came to

know about the sale deed dated 11.01.1988

(Ex­D/1), which was executed by Bhulau in

favour of the defendant No.1 and Khasra

No.485/4, area 1529 sq. ft. was sold to the

defendant No.1 and ultimately the foundation

has been filled up by bricks and stones by

the defendants. According to the plaintiff,

the said sale deed is false and bogus, which

resulted into filing of suit by the plaintiff

for vacant possession and eviction and decree

was claimed. The defendants filed the written

statement stating inter­alia that they have

purchased the suit land bearing Khasra

No.485/4, area 1529 sq. ft. from Bhulau

Mansukha on 11.01.1988 (Ex­D/1), as such the

plaintiff is not entitled for decree.

6. In the first round of litigation, the suit

was dismissed by the Trial Court vide

judgment and decree dated 23.02.1993 in Civil

Suit No.161/1992 and when the appeal was

preferred before the First Appellate Court,

the First Appellate Court vide its judgment

and decree dated 30.04.1996 allowed the

appeal preferred by the appellant/plaintiff

and the matter was remitted back to the Trial

Court for proceeding in accordance with law

after allowing the amendment application

under Order 6 Rule 17 of CPC and after

framing issues and providing opportunity to

adduce additional evidence.

7. In the second round of litigation, the Trial

Court appointed the Commissioner to find out

the exact location of the suit land. The

Commissioner submitted his report on

01.04.2000 annexed as Article­A, prepared on

02.03.2000. Thereafter, the Trial Court vide

its judgment and decree held that though the

plaintiff has claimed the suit property by way

of Will dated 19.09.1986 (Ex­P/1) executed by

Sukariya Bai in favour of Pooran and Will

dated 27.05.1988 (Ex­P/2) executed by Pooran

in favour of the plaintiff, but it has not

established the title of the plaintiff and

dismissed the suit, against which the appeal

was preferred by the appellant/plaintiff. The

First Appellate Court vide its judgment and

decree held that the plaintiff's suit land was

allegedly given by Sukariya Bai to Pooran by

way of Will (Ex­P/1) dated 19.09.1986 and

thereafter Puran has executed the Will in

favour of the plaintiff vide Ex­P/2 dated

27.05.1988, but it has not been proved that

the suit land was actually given by Sukariya

to Pooran vide Ex­P/1 and thereafter by Pooran

vide Ex­P/2 in favour of the plaintiff and the

plaintiff has not acquired any title over the

suit land, as in both the Wills (Ex­P/1 & Ex­

P/2), the suit land has not been mentioned and

the title has not been acquired by the

plaintiff, therefore, mainly on the basis of

Wills (Ex­P/1 & Ex­P/2), no decree for

possession can be granted in favour of the

plaintiff, particularly when the plaintiff has

failed to prove that the suit land is part of

Khasra No.485/1, area 0.059 hectare held by

him and the appeal was dismissed affirming the

judgment and decree of the Trial Court.

8. The concurrent finding recorded by the two

Courts below holding that the plaintiff has

failed to prove title of the suit land bearing

khasra 485/1, area 600 sq. ft. to be part of

the land owned by him bearing Khasra No.485/1,

area 0.122 hectare is finding of fact based on

the material available on record, which is

neither perverse nor contrary to the record.

9. I do not find any substantial question of law

for determination in this second appeal. It

deserves to be and is hereby dismissed in

limine without notice to the other side. No

order as to cost (s).

Sd/­ Sanjay K. Agrawal Judge Nirala